Supreme Court Affirms Marriage for Same-Sex Couples

On June 26, 2015, in Obergefell v. Hodges, the Supreme Court of the United States affirmed once and for all that the right to marry is a fundamental right and therefore, no State may deprive a same-sex couple of that right, and no State may refuse to recognize a marriage validly performed in another State.

The Dignity of Marriage is a Constitutional Right

The ruling, which upheld same-sex marriage laws across the nation and generated widespread rainbow-themed celebrations from the White House to Disney World and beyond, was issued on the 2nd anniversary of the Court’s Windsor decision (striking down DOMA, the federal law denying marriage benefits to same sex couples) and the 12th anniversary of Lawrence v. Texas (striking down anti-sodomy laws in Texas).  As expected, the Obergefell opinion was penned by Justice Kennedy, the author of both Windsor and Lawrence.  Focusing on the dignity that marriage affords and the human ideals of love, family, and respect that we all share, Justice Kennedy found marriage equality embedded in our Constitution, and eloquently spoke for marriage proponents everywhere:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were.  As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death.  It would misunderstand these men and women to say they disrespect the idea of marriage.  Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.  Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.  They ask for equal dignity in the eyes of the law.  The constitution grants them that right.”



“Immutable Nature” and Future Challenges

In an interesting aside, Justice Kennedy’s opinion also contains another important concept, which could play a significant role in future cases involving LGBT rights.  Twice in his opinion, Justice Kennedy refers to the “immutable nature” of the challengers (the individuals challenging the validity of state laws denying marriage to same-sex couples.)  Justice Kennedy’s meaning is clear: being gay is not a choice; instead, sexual orientation is an immutable part of an individual’s character, incapable of being changed.  Some legal scholars have noted that Kennedy’s choice to use that particular phrase, which has legal significance, could become relevant in future challenges to laws that discriminate against the LGBT community, because it would require the Supreme Court to view any such law much more critically, and would place a much greater burden on any State trying to defend it.

What Does the Ruling Mean for LGBT Marylanders?

Although same-sex marriage has been legal in Maryland since January 1, 2013, the Supreme Court’s ruling now means that married same-sex Marylanders may travel throughout the country freely, with the peace of mind that their marriage will be recognized in all 50 states.  This may be especially important for individuals who previously could not relocate, for fear that their marriage would be disregarded in an “unfriendly” State.   This also means that married same-sex couples can be divorced in any State, as each State must now recognize validly-performed marriages from another State.

Even with this momentous ruling, however, there are still legal – and non-legal – obstacles unique to same-sex couples.  Private employers who offer self-insured medical plans may not be required to cover a same-sex spouse.  Religious institutions are not required to perform marriage ceremonies for same-sex couples.  In an emergency, hospitals or medical providers could, for various reasons, require proof of marriage for a same-sex couple before allowing an individual to make decisions for their spouse.  And although Maryland law presumes that a child born in a marriage is a child of both spouses, other states may not have the same presumptions – and parental rights are not always assured for the non-biological parent, so LGBT couples looking to build a family should still consult with an attorney and execute a second-parent adoption.

Cheryl A. Jones, Esq. and Anna S. Sholl, Esq. are attorneys at Pessin Katz Law, P.A., whose practices include estate planning for same-sex couples, second parent adoptions, and other family building issues.  Cheryl can be reached at 410-769-6141 or, and Anna can be reached at 410-769-6152 or